Harcourt v BHP Billiton Iron Ore Pty Ltd and Ors (No.2)

[2008] FMCA 1100

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARCOURT v BHP BILLITON IRON ORE PTY LTD & ORS (No.2) [2008] FMCA 1100

HUMAN RIGHTS – Discrimination – disability – termination of employment.

PRACTICE & PROCEDURE – Interim injunction – balance of convenience – whether seriousness of issue to be tried to be considered in assessing balance of convenience.

Disability Discrimination Act, 1992 (Cth), s.15(2) and(4)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss.46P(1) and (2), 46PO(6), 46PP(1)(a)

Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398
Australasian Meat Industry Employees Union v GK O’Connor Pty Ltd [2000] FCA 1795
Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning Pty Ltd [1984] VR 947
Bullock v Federated Furnishing Trades Society of Australasia(No.1) (1985) 5 FCR 464
Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226
Dowling v John Fairfax Publications Pty Ltd (No.2) [2008] FMCA 184
Epitoma Pty Ltd v Australasian Meat Industry Employees Union (No.2) (1984) 54 ALR 730
Gardner v National Netball League (2001) 182 ALR 408
Harcourt v BHP Billton Iron Ore Pty Ltd & Ors [2008] FMCA 860
Hoskin v State of Victoria (Dept. of Education and Training) [2002] FMCA 263
Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414
Mifsud v Skye Children’s Co-Operative Limited (2007) 164 IR 218; [2007] FMCA 914
Village Roadshow Theatres Pty Ltd & Anor v Davenport & Ors [2000] VSC 332
Yunghans v Yunghans (1995) FLC 92-386
X v Commonwealth (1999) 200 CLR 177

Applicant: TREVOR JOHN HARCOURT

First Respondent: BHP BILLITON IRON ORE PTY LTD

Second Respondent: BHP BILLITON MINERALS PTY LTD

Third Respondent: MITSUI-ITOCHU IRON PTY LTD

Fourth Respondent: ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD

File Number: PEG 98 OF 2008

Judgment of: Lucev FM

Hearing date: 25 July 2008

Date of Last Submission: 25 July 2008

Delivered at: Perth

Delivered on: 1 August 2008

REPRESENTATION

Counsel for the Applicant: Mr J Blackburn

Solicitors for the Applicant: Carlo Primerano & Associates

Counsel for the First Respondent: Mr L Tsaknis

Solicitors for the First Respondent Mallesons Stephen Jacques

Second, Third and Fourth Respondents: No appearance

ORDERS

1. That the application for an interim injunction against the First Respondent be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 98 OF 2008

TREVOR JOHN HARCOURT

Applicant

And

BHP IRON ORE PTY LTD

First Respondent

BHP BILLITON MINERALS PTY LTD

Second Respondent

MITSUI-ITOCHU IRON PTY LTD

Third Respondent

ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

1. This application seeks an interim injunction under s.46PP(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)[1] reinstating the Applicant to a position which he occupied with the First Respondent prior to the termination of his employment with the First Respondent on 4 June 2008.

   [1] “HREOC Act”.

2. On 3 June 2008 the Applicant had complained to the Human Rights and Equal Opportunity Commission[2] concerning the impending termination of his employment,[3] alleging discrimination in employment on the ground of disability contrary to s.15(2) and (4) of the Disability Discrimination Act, 1992 (Cth).[4]

   [2] “HREOC”.

   [3] “Complaint”; HREOC Act, s.46P(1) and (2).

   [4] “DD Act”.

3. The application originally sought injunctive relief under the HREOC Act  against the Second, Third and Fourth Respondents, in addition to the First Respondent, in relation to housing arrangements for the Applicant in Port Hedland, but subsequent to the refusal of this Court to grant an ex parte injunction in respect of that issue,[5] that matter has been the subject of agreement between the parties. Thus, it is only the reinstatement in employment issue which remains outstanding for the purposes of the present interim injunction application.

   [5] Harcourt v BHP Billiton Iron Ore Pty Ltd & Ors [2008] FMCA 860.

Issues

1. For the purposes of determining whether to grant an interim injunction to maintain the pre-Complaint status quo,[6] the parties agree that there are serious issues to be tried in relation to this matter. Thus, the remaining issue is whether or not the balance of convenience favours the granting of the interim injunction[7]. In that regard, there are two sub-issues raised by the submissions of the Applicant, namely:

   a)the extent to which the strength of the Applicant’s case affects the balance of convenience; and

   b)whether it is appropriate that the Applicant be restricted to his remedy in damages.

   [6] HREOC Act, s.46PP(1)(a)

   [7] Hoskin v State of Victoria (Dept. of Education and Training) [2002] FMCA 263 at para. 49 per Walters M, citing Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398, Epitoma Pty Ltd v Australasian Meat Industry Employees Union (No.2) (1984) 54 ALR 730 and Yunghans v Yunghans (1995) FLC 92-386.

Facts

1. Because of the sub-issues raised by the Applicant and referred to above,[8] it is necessary to set out the facts in some detail, notwithstanding that there is little dispute as to the facts, as opposed to the conclusions to be drawn from them.

   [8] See para. 4 above.

2. The Applicant is 53 years of age, and was employed as a Production Supervisor by the First Respondent at its Nelson Point facility in Port Hedland commencing on 18 December 2000.[9] At termination, the Applicant’s salary was approximately $140,000 a year.[10] At the time of his appointment the Applicant was given a position description for a “Shift Supervisor”, which the Applicant claims is the same as a “Production Supervisor”.[11]

   [9] Affidavit of Trevor John Harcourt, sworn 23 June 2008, paras. 2-4 (“Applicant’s First Affidavit”).

   [10] Applicant’s First Affidavit, para. 5.

   [11] Applicant’s First Affidavit, para. 6 and Annexure TJH 26.

3. The Applicant suffered a neck injury in December 2006, and was absent from work until April 2007. The Applicant has been diagnosed as having cervical stenosis.[12]

   [12] Applicant’s First Affidavit, paras. 7-8.

4. The Applicant has undertaken a return to work programme which he commenced on 13 April 2007, and has involved a return to work 8 hours a day 5 days a week, but not to full duties.[13]

   [13] Applicant’s First Affidavit, paras. 9-11.

5. The Applicant attended a number of appointments with Dr Joel Silbert, a Consultant Occupational Physician engaged by the First Respondent. The Applicant says that no MRI scan was every conducted by

   
   

   Dr Silbert and physical examination was limited to requests to the Applicant to move his head up and down and to the side.[14]

   [14] Applicant’s First Affidavit, paras. 13 and 22.

6. After attending an appointment with Dr Silbert on 31 October 2007, the Applicant met with Carmel Watson, a Senior Human Resources Advisor with the First Respondent, who advised the Applicant that various work restrictions then part of his return to work programme might be permanent. The Applicant disputed that assessment.[15] Watson appears to have told the Applicant that as a result of the restrictions becoming permanent he would not be returning to his position as a Production Supervisor.[16]

   [15] Applicant’s First Affidavit, paras. 14-16.

   [16] Applicant’s First Affidavit, paras. 17-18 and Annexure TJH27.

7. On or about 9 November 2007 the Applicant was advised that the First Respondent considered that the various work restrictions which had been imposed on him as part of his return to work programme were now considered permanent. The Applicant took issue with that view, and as a consequence the First Respondent referred him to Advanced Personnel Management[17] for a Vocational Assessment and a Physical Work Performance Evaluation.[18]

   [17] “APM”.

   [18] “PWPE”. Applicant’s First Affidavit, paras. 20-29.

8. The Applicant attended APM on 30 November 2007 and undertook the Vocational Assessment and PWPE. The Applicant took with him a 2004 Job Analysis Report for Supervisory/Management Professional Staff.[19]

   [19] “2004 JAR”.  Applicant’s First Affidavit, paras.24-26 and Annexure TJH3.

9. The PWPE prepared by APM on 20 December 2007 concluded that the Applicant was physically capable of returning to the role of Production Supervisor for the First Respondent, or a similar position.[20]

   [20] Applicant’s First Affidavit, Annexure TJH4.

10. The Applicant told APM that he would not be returning to work as a Production Supervisor for BHP, not because he did not want to return, but because he did not believe the First Respondent would allow him to do so. The Applicant’s belief in this regard was based on hearsay evidence to the effect that the First Respondent would not find him a position in the operations area in which he had worked.  Further, it also appears that the Applicant was told by Watson, and Neven (the First Respondent’s Superintendent Operations), that he would not be returning to his position as Production Supervisor.[21]

    [21] Applicant’s First Affidavit, paras. 18 and 34.

11. On or about 18 February 2008 the First Respondent sought an opinion from Dr Silbert concerning the Applicant’s capacity for work in light of the APM report. Dr Silbert prepared a report dated 29 February 2008 in which he expressed the view that the Applicant had a capacity for work and may be considered fit to undertake the duties of a Store Warehousing Clerk, and otherwise remained fit to “undertake all manner of sedentary, clerical, supervisory, administrative, as well as light and medium manual activities on a full-time basis”, with the only documented restrictions being physical in nature.[22]

    [22] Applicant’s First Affidavit, Annexure TJH5.

12. Dr Silbert also commented in the 29 February 2008 report that “presents with unknown anxiety or stress related symptoms for which a clear and unequivocal diagnosis and determination of a capacity for work has yet to be established.”[23]

    [23] Applicant’s First Affidavit, Annexure TJH5.

13. A further opinion was sought from Dr Silbert by the First Respondent and on 11 March 2008, seemingly without access to further information, or any further information, Dr Silbert opined that:

    “Mr Harcourt remains unfit at present to undertake an administrative role. He presents with unknown psychological/psychiatric symptoms that is [sic] considered incompatible with an administrative role at present.  Further clarification of Mr Harcourt’s psychological/psychiatric status may be undertaken in order to further assess his suitability for such employment.”[24]

    [24] “2008 JAR”; Affidavit of Carmel Michelle Watson, sworn 23 July 2008, Annexure CMW16 (“Watson’s Affidavit”).

14. Prior to the First Respondent receiving Dr Silbert’s opinion of

    
    

    11 March 2008 the Applicant met with Neven and Watson and advised them that he thought he would undertake various roles, and that he would be prepared to take an administrative position with the First Respondent.[25]

    [25] Applicant’s First Affidavit, paras. 38-42.

15. On 18 March 2008 the Applicant again met with Neven and Watson.  By this time Neven and Watson had Dr Silbert’s opinion of 11 March 2008. Watson told the Applicant that Dr Silbert had deemed the Applicant unfit to perform the inherent requirements of the position of Production Supervisor, without detailing what those inherent requirements were. The Applicant was also told that Dr Silbert had advised that the Applicant was incapable of performing an administrative role, and that on the basis of Dr Silbert’s assessment the Applicant was unfit to perform the inherent requirements of the position of Production Supervisor or any vacant alternative employment with the First Respondent, and that the First Respondent was therefore considering terminating the Applicant’s employment.[26]

    [26] Applicant’s First Affidavit, paras. 43-52; Watson’s Affidavit, para. 25.

16. The Applicant told Watson that he wished to obtain another opinion from his own doctor in Perth. Watson and Neven then told the Applicant that he had until 24 April 2008 to provide any further medical evidence, because the First Respondent wanted the matter “finalised” by 24 April 2008.[27]

    [27] Applicant’s First Affidavit, paras. 53-56; Watson’s Affidavit, paras. 26-27

17. On 31 March 2008 Neven wrote to the Applicant attaching a Job Task Analysis Report for the position of Production Supervisor.[28]  According to the Applicant the 2008 JAR contains tasks:

    a)he never had to perform;

    b)others that he rarely had to perform; and

    c)that were neither essential nor inherent requirements of the position of Production Supervisor.[29]

    [28] Applicant’s First Affidavit, Annexure TJH7.

    [29] Applicant’s First Affidavit, paras. 60-65.

18. The Applicant says that his job as Production Supervisor was primarily office based, with significant time spent on the telephone and radio liaising between departments, as well as driving, walking and making visual checks of work groups and plant. The Applicant says that the position never required tasks such as hosing, roller change-outs, tying ship lines, shovelling or changing car tyres, nor did it require the Production Supervisor to lift or carry tools or equipment ranging from 20kgto 30kg (for individual lift) to 80kg to 100kg (for a team lift).[30]

    [30] Applicant’s First Affidavit, paras. 61-64.

19. There is hearsay evidence that the tasks mentioned above were included in the 2008 JAR on the basis that they were things that the author of that document had seen Production Supervisors do over the years, rather than them being the duties of a Production Supervisor.[31]

    [31] Applicant’s First Affidavit, para. 65.

20. The Applicant booked an MRI for the morning of 7 May 2008, and an appointment with a neurosurgeon, Mr Malone for later the same day. The Applicant advised Neven that he was booked for an MRI scan on 7 May 2008, and later provided Neven with a letter containing details of both his appointment for an MRI on the morning of 7 May 2008 and an appointment with Mr Malone for 1.30pm the same day.[32]

    [32] Affidavit of Trevor John Harcourt, sworn 26 June 2008, paras. 4-5 (“Applicant’s Third Affidavit”).

21. At the same time the Applicant gave Neven a letter from Dr Cronje,[33] a psychologist whom he had seen, but who had closed her file in November 2007, having last seen the Applicant on 31 August 2007, when she had taken the Applicant through some relaxation techniques.[34]

    [33] A Ph.D in psychology, not a medical doctor.

    [34] Applicant’s First Affidavit, paras. 71-73; Watson’s Affidavit, para. 30.

22. On 30 April 2008 Dr Silbert said that his opinion had not changed, and that it would “not negate the observed clinical findings over the past one year with the determination of [the Applicant’s] current and future capacity for work.”[35]

    [35] Watson’s Affidavit, Annexure CMW19.

23. Dr Silbert had not seen the Applicant since 31 October 2007.

    
    

    No psychological or psychiatric assessment of the Applicant was available to him, and, except to the extent that a consultant occupational physician might deal with psychological or psychiatric injuries, Dr Silbert appears to have no relevant qualifications allow him to make an independent psychological or psychiatric assessment.  Notwithstanding this, Dr Silbert appears to have re-iterated, on 30 April 2008, the view expressed in his 11 March 2008 report that the Applicant was unfit for an administrative role because of “unknown psychological/psychiatric symptoms”.[36]

    [36] Watson’s Affidavit, Annexures CMW19 and CMW16.

24. On 1 May 2008 the Applicant’s services with the First Respondent were terminated by the giving of five weeks notice to take effect on

    
    4 June 2008

    , during which period the Applicant would not be required to work.[37]

    [37] Applicant’s First Affidavit, para. 79.

25. The Applicant advised Neven and Watson, who conducted the meeting in which the Applicant was handed a pre-prepared termination letter together with a bundle of termination forms,[38] that he was not happy and did not agree with the decision to terminate his services and that he would be seeking legal advice.[39]

    [38] See TJH9 and TJH25.

    [39] Applicant’s First Affidavit, para. 81.

26. On 17 August 2007 and 19 September 2007 the Applicant had received written warnings in relation to his non-attendance at work as required in accordance with his return to work programme and failure to remain contactable and comply with stand aside provisions in his contract of employment. Of the latter occasion the Applicant was warned that conduct of a similar nature would be viewed seriously and might result in further disciplinary action up to and including termination of the employment contract.[40]

    [40] Affidavit of Trevor John Harcourt, sworn 24 June 2008, Annexures TJH29 and TJH31.

27. In relation to the Applicant’s financial and employment position:

    a)the Applicant has lost employment which paid $140,000 a year;

    b)the Applicant’s wife is now “the sole income earner” and earns $750 a week after tax;

    c)the Applicant and his wife have no dependent children living at home;

    d)the Applicant pays $100-$140 a week for the house, in circumstances where market rents in Port Hedland are $750-$1200 a week;

    e)there is no evidence of other income or liabilities (of any kind) or of any attempt to obtain employment by the Applicant, or, if he has applied for employment, the outcome of any application; and

    f)the Applicant says he will incur further, unspecified, legal costs if the matte is not resolved, and says that financial pressures (which are not particularised) are putting stress on his wife and their relationship. [41]

    [41] Applicant’s First Affidavit, paras. 132 and 135-137; Applicant’s Third Affidavit, paras. 10-24.

Principles

1. There is no dispute that in determining whether to grant an interim injunction the Court needs to be satisfied that there is a serious question to be tried and that the balance of convenience favours the granting of an interim injunction.[42]

   [42] See para. 4 above.

2. In this case both parties accept that there is a serious question to be tried.[43]

   [43] See para. 4 above.

3. The parties differ as to whether the balance of convenience favours the granting of an interim injunction, and the Applicant goes further and says that in weighing the balance of convenience the Court must consider not merely whether damages are an adequate remedy but whether in the circumstances the Applicant ought to be confined to damages as a remedy.[44] The Applicant also says that the questions are not necessarily independent, but may be inter-dependent, leading a court to more readily grant an interim injunction when the balance of convenience is even and the claim strong, or where a claim is not as strong but there is a marked balance of convenience in favour of interim injunctive relief.[45]

   [44]

   [45] Bullock v Federated Furnishing Trades Society of Australasia (No.1) (1985) 5 FCR 464 at 472 per Smithers, Sweeney and Woodward JJ.

4. The Applicant therefore says that it is necessary for the Court to assess the strength of the claim as relevant to an assessment of the balance of convenience.

Consideration of issues

1. There is no question that there is a serious question to be tried as to the nature of the inherent requirements of the position of Production Supervisor. Ultimately, the determination of what those inherent requirements are is a matter for the Court, on the basis of the evidence led before it at hearing. Therefore, the fact that the First Respondent and Dr Silbert have not articulated the inherent requirements of the position of Production Supervisor, may not be material. Further, on the Applicant’s own evidence there is no clear articulation of the inherent requirements of the position of Production Supervisor. On the one hand, the First Respondent asserts that for the reasons put forward by Dr Silbert the Applicant is not fit to work as a Production Supervisor (or in any other capacity on site it would seem), whilst the Applicant asserts that he is fit to carry out the duties of Production Supervisor, and points to evidence from APM and Mr Malone which supports him in that contention. However, neither party puts evidence before the Court as to what they say are the inherent requirements of the position of Production Supervisor. Also, there is no evidence as to what are the inherent requirements of other positions for which the Applicant was not considered suitable. In any event, had each party done so, it is likely that they would have identified different inherent requirements, and the Court would, because of that likely conflict, not be able to determine the issue on the basis of that conflicting evidence.

   
   

   The difficulty determining the inherent requirements of the position (aside from what the parties might say they are) is further highlighted by the fact that the evidence as to the nature of the duties of the position of Production Supervisor is not clear on the Applicant’s own case. The Court has before it different Job Task Analysis Reports prepared in 2004 and 2008 and a generic description of duties dating from the time of the Applicant’s appointment in 2000. Whilst the Court might be inclined to accept that the timing and preparation of the 2008 Job Task Analysis Report might be susceptible to criticism or suspicion in all the circumstances, it does not alter the fact that the there is conflicting evidence about the nature of the duties performed by a Production Supervisor, in circumstances where the Applicant has not carried out those duties in full in the workplace since December 2006. Furthermore, the Court is unable, on the material presently before it, to make any determination as to what are the inherent requirements of the position of Production Supervisor, those requirements referring to, at least, the physical ability to perform the characteristic skill of the employment, and not the performance at work modified from that originally performed by an employee to assist his rehabilitation needs.[46]

   [46] Cucanic v IGA Distribution (Vic) Pty Ltd [2004] FCA 1226 at paras. 23-24 per Marshall J. (“Cucanic”).

1. The evidence makes it manifest that there is likely to be a serious dispute about what constitutes the inherent requirements both for the position of Production Supervisor, and for other positions for which the Applicant might have warranted consideration, and in respect of both his actual physical injury and any imputed psychological or psychiatric injury. In those circumstances, it is not appropriate for the Court at an interim stage to take a view as to the relative strength of the case of either party with respect to the issue of the inherent requirements of the various positions for which the Applicant might have been considered consequent upon any actual or imputed disability.

2. The position is similar with respect to the question of whether or not the Applicant would actually have been able to carry out the inherent requirements of the position of Production Supervisor, or any other position for which he might have been considered. The Court has before it conflicting evidence from Dr Silbert on the one hand, and APM and Mr Malone on the other hand. Even if Dr Silbert’s examination or examinations of the Applicant were as cursory in relation to his physical injury as has been asserted by the Applicant, the evidence of the examination by Mr Malone, the neurosurgeon, does not take the matter much further. Mr Malone only saw the Applicant on one occasion, and Dr Silbert saw him on several occasions.

   
   

   The evidence does not disclose whether Mr Malone in fact conducted any form of physical examination of the Applicant at all, or whether his report is based on his examination solely of the MRI results, or to what extent he took into account what he was told by the Applicant.

   
   

   The place for the determination of a contest between medical and therapeutical experts is not on the papers at an interim stage. It is properly a matter for hearing.

3. In relation to any imputed psychological or psychiatric disability, and specifically it would appear in the circumstances arising from stress allegedly suffered by the Applicant, the First Respondent has acted on the advice of Dr Silbert as to the Applicant’s fitness to carry out the duties, both of Production Supervisor and of other positions within the First Respondent’s workplace. Dr Silbert was of the view that the Applicant would not be able to carry out the inherent requirements of those positions because of an imputed psychological or psychiatric disability. The evidence presently before the Court appears to establish that there was no basis for Dr Silbert to express a view about the Applicant’s fitness for work on this basis, as no psychological or psychiatric assessment of the Applicant had ever been carried out by a person qualified to do so. In imputing a psychological or psychiatric disability preventing the Applicant from carrying out the inherent requirements of the positions mentioned above, it appears that

   
   

   Dr Silbert had no proper evidence before him to justify that conclusion. In respect of this imputed disability the evidence, at this interim stage, falls in favour of the Applicant. Whether that is sufficiently strong in the overall circumstances to warrant interim injunctive relief is a matter to be assessed by the Court having regarding for all of the other relevant circumstances.

4. The fact that the Applicant was given notice on 1 May 2008 that he was to be terminated on 4 June 2008, in circumstances where the First Respondent knew that he had an appointment for an MRI scan and to see a neurosurgeon a few days later on 7 May 2008 is also a factor which weighs in favour of the Applicant as to balance of convenience having regard to the matters which the First Respondent might take into account before terminating the Applicant’s services.[47] Once again, the question of the strength of that consideration depends upon a consideration of the overall circumstances of the case in relation to the balance of convenience.

   [47] DD Act, s.15(4).

5. There is no doubt a serious question to be tried as to whether the Applicant would be able to carry out the inherent requirements of his position of Production Supervisor, or another position, with services or facilities which the First Respondent can provide without undue hardship.[48] Whilst there is no doubt a serious question to be tried, there is little or no evidence presently before the Court which enables it to weigh the balance of convenience with respect to that part of the serious issue to be tried.

   [48] X v Commonwealth (1999) 200 CLR 177 at 190 per McHugh J.

6. In relation to the question as to whether the First Respondent unlawfully discriminated against the Applicant by denying him opportunities to transfer to an alternative position, that matter has been addressed above in relation to the issue of the inherent requirements of the position of Production Supervisor and alternative positions.

   
   

   It appears, that at least in part, the Applicant has not been considered for alternative positions because of an imputed psychological or psychiatric disability.  That matter is also addressed above.

7. The Court must also consider the Applicant’s performance and conduct as an employee. This is a difficult task in the context of a person who is on a return to work programme and has seemingly not performed the full duties of a Production Supervisor since December 2006, and has not been engaged in another position. The Applicant has been given two written warnings concerning attendance and contactibility. Whether the warnings were merited may be an issue sought to be contested in the context of the ultimate issue, but for present purposes is not an issue which it is appropriate for the Court to deal with at this interim stage. It is therefore not an issue which can be weighed positively in favour of the Applicant in relation to the balance of convenience.

8. Turning to other factors, it is suggested that the balance of convenience weighs in favour of the Applicant because of his age, employment and financial circumstances.

9. The Court accepts that the Applicant is aged 53 and that his employment has been terminated. However, the evidence goes no further than that: there is no evidence as to what, if any, other employment has been applied for by the Applicant; and, if he has applied for employment, what the outcome of those applications have been, and in particular, the basis or bases for any rejection of any employment application made by the Applicant (especially on grounds related to his disability).[49]  There is no evidence that any employment for which he is qualified is in limited supply, but nor is there any evidence that his services might be in demand. The mere fact of termination, absent any evidence in relation to attempts to obtain employment and the outcome of those attempts, cannot be said to weigh as a positive factor for the Applicant in the balance of convenience.

   [49] Applicant’s Third Affidavit, paras. 20-21.

10. The Applicant also argued that his financial circumstances were dire. Again, the Court accepts that he has lost employment in a position which paid $140,000 a year. There is, however, no evidence as to what, if any, other remuneration, allowances or benefits, whether from employment or other sources, the Applicant has obtained since the termination of his employment. There is no evidence of what, if any, sums the Applicant was paid in addition to payment on termination of employment, whether by way of additional notice or redundancy or otherwise. There is also no evidence of what assets the Applicant has which might be sold, or against which money might be borrowed.

11. The evidence discloses that the Applicant’s wife is now the sole income earner earning $750 per week after tax. The evidence seemingly indicates that the Applicant has a liability of $100-$140 a week in relation to the housing arrangements with the First to Fourth Respondents. Apart from that, there is no “hard” evidence of the Applicant’s financial position, or insofar as it is relevant, that of his wife.

12. It is also relevant to note in this context that the Applicant, and it seems his wife, do not have financial responsibility for any dependent children.

13. The evidence includes a plea, consistent with the Applicant’s submissions, that his financial circumstances are poor. There is however insufficient detailed evidence to bear out this assertion, and whilst the Court accepts that the Applicant is not as pecunious as he was prior to termination of employment, nor can it be said, on the evidence, that his financial circumstances are “precarious”.[50] Indeed, given the settlement of the issues with respect to the house in which the Applicant, and his wife, continue to reside, it is arguable that the First (and to the extent that it is irrelevant for the purposes of this application, Second to Fourth Respondents), have conferred a significant benefit on the Applicant for the duration of this case, given that commercial rents in Port Hedland appear to be between $750-$1200 a week.

    [50] Compare Australasian Meat Industry Employees Union v GK O’Connor Pty Ltd [2000] FCA 1795 at para. 9 per Marshall J.

14. The Court accepts that there will always be a degree of psychological stress in these circumstances, and that the Applicant’s financial position is not as good as it was prior to termination of employment, but again, there is simply insufficient evidence of the level of stress being suffered, and no real evidence that the Applicant is “struggling to survive financially”[51] so as to alter the balance of convenience, and more so when regard is had to the arrangements which have been entered into between the parties concerning the house.

    [51] Compare Australasian Meat Industry Employees Union v GK O’Connor Pty Ltd [2000] FCA 1795 at para. 9 per Marshall J. See also Dowling v John Fairfax Publications Pty Ltd (No.2) [2008] FMCA 184 at para. 20 per Cameron FM: “no evidence of … such a parlous financial position that it could be said that an order other than in the nature of damages must be made.”

15. The Court is therefore not of the view that there is sufficient evidence of the Applicant being in dire financial circumstances, or struggling financially, to significantly affect the balance of convenience so as to alter it in the Applicant’s favour.

16. The Court also has to have regard in an overall sense as to whether the remedy of damages is appropriate if the Applicant is ultimately successful. If an interim injunction were to be granted the Applicant would be re-employed, and paid, for whatever period it takes HREOC to deal with the complaint. If HREOC is unable to conciliate an outcome, and terminates the complaint, then the Applicant will be able to make an application to this Court with respect to the alleged unlawful discrimination, seeking, amongst other things, reinstatement or re-employment. Dependent upon the terms of any interim injunction granted, the Applicant might be in employment, and paid, for the period that the matter is being conciliated by HREOC, but possibly also for the period that the matter is before this Court for determination.

17. It is immediately apparent, without the need for evidence, that at the very least an interim injunction would see the Applicant remain in employment for many months, and possibly a year or more. In those circumstances, the Court notes what was said in Mifsud v Skye Children’s Co-Operative Limited:

    “Should it turn out that the Applicant does not make out her case, the Respondent will have been forced to employ her for a period of time that it does not want to employ her for and in respect of which it would have to pay monies that it cannot recover.  On the other hand, if the Applicant is successful, all her economic loss may be redressed.  Furthermore and I make this plain in the face of this litigation, while a Respondent must act as it feels proper, any further appointments made in the interim are not likely to stand as any sort of bar to any Orders that the Court otherwise thinks appropriate.  For those reasons I am not prepared to grant the interim relief sought.”[52]

    [52] (2007) 164 IR 218 at 219 per Burchardt FM; [2007] FMCA 914 at para. 6 per Burchardt FM (“Mifsud”).

18. Mifsud

    was a case under different legislation, but it was a case in which interim relief seeking reinstatement pending hearing was sought.

    
    

    The Court adopts the view expressed in Mifsud. The Court does so noting that it appears that any money payable to the Applicant during a period of reinstatement under an interim injunction is not recoverable, and that he cannot be required to give an undertaking as to damages as a condition of an interim injunction.[53]

    [53] HREOC Act, s.46PO(6); and see Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414.

19. In all the circumstances, the Court considers that damages would be an appropriate remedy in this case and that to force the First Respondent to pay the Applicant for a period of reinstatement under an interim injunction would not be an appropriate exercise of the discretion with respect to interim relief in all of the circumstances of this case. 

Conclusion

1. The Court has had regard to all of the circumstances of the case, and particularly:

   a)the seriousness of the issues to be tried, including the inherent requirements of the duties of the position of Production Supervisor, and other alternative positions;

   b)the imputed psychological or psychiatric disability, which in the context of inherent requirements and the ability to carry out the functions of various positions, including Production Supervisor, was a factor which weighed in favour of the Applicant;

   c)the Applicant’s employment and financial circumstances; and

   d)the desirability of reinstatement, including the availability and desirability of damages as a remedy, both in relation to reinstatement on an interim basis and overall,

   and has concluded that the balance of convenience does not favour the grant of an interim injunction requiring the First Respondent to reinstate the Applicant.

Order

1. The Court will order that the application for an interim injunction against the First Respondent be dismissed.

2. The Court will hear the parties as to costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  S Gough

Date:  1 August 2008

Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning Pty Ltd [1984] VR 947 at 954-955 per Kaye J; Village Roadshow Theatres Pty Ltd & Anor v Davenport & Ors [2000] VSC 332 at para. 10 per Warren J; Gardner v National Netball League (2001) 182 ALR 408 at 417 per McInnis
FM; [2001] FMCA 50 at para. 53 per McInnis FM.